4th Circuit Decides Definition of Piracy Evolves with the Law of Nations

A three-judge panel of a U.S. appeals court has decided that UNCLOS sets forth the definition of piracy for purposes of U.S. law. As we signalled here and here, the U.S. Court of Appeals for the 4th Circuit was faced with the question of whether “piracy as defined by the law of nations” in 18 U.S.C. § 1651 (adopted in 1816) constitutes a static or evolving concept. In a well-written and extremely thorough decision, the court has determined that the law of nations is an evolving concept and that the definition contained within UNCLOS constitutes the law of nations as defined in the statute. Since UNCLOS defines piracy in part as ‘an illegal act of violence,’ a completed theft is not requisite to the crime. This has important repercussions for future prosecutions because pirates are often unsuccessful in boarding ships or taking anything of value even though they may fire upon vessels with AK-47s and RPGs. Limiting the definition to the law of 1816 would have prevented U.S. courts from exercising jurisdiction where conduct less than a completed robbery was perpetrated. Here are the crucial bits of the opinion:

The defendants would have us believe that, since the Smith era, the United States’ proscription of general piracy has been limited to “robbery upon the sea.” But that interpretation of our law would render it incongruous with the modern law of nations and prevent us from exercising universal jurisdiction in piracy cases. See Sosa, 542 U.S. at 761 (Breyer, J., concurring in part and concurring in the judgment) (explaining that universal jurisdiction requires, inter alia, substantive uniformity among the laws of [the exercising] nations”). At bottom, then, the defendants’ position is irreconcilable with the noncontroversial notion that Congress intended in § 1651 to define piracy as a universal jurisdiction crime. In these circumstances, we are constrained to agree with the district court that § 1651 incorporates a definition of piracy that changes with advancements in the law of nations.

We also agree with the district court that the definition of piracy under the law of nations, at the time of the defendants’ attack on the USS Nicholas and continuing today, had for decades encompassed their violent conduct. That definition, spelled out in the UNCLOS, as well as the High Seas Convention before it, has only been reaffirmed in recent years as nations around the world have banded together to combat the escalating scourge of piracy. For example, in November 2011, the United Nations Security Council adopted Resolution 2020, recalling a series of prior resolutions approved between 2008 and 2011 “concerning the situation in Somalia”; expressing “grave[ ] concern[ ] [about] the ongoing threat that piracy and armed robbery at sea against vessels pose”; and emphasizing “the need for a comprehensive response by the international community to repress piracy and armed robbery at sea and tackle its underlying causes.” Of the utmost significance, Resolution 2020 reaffirmed “that international law, as reflected in the [UNCLOS], sets out the legal framework applicable to combating piracy and armed robbery at sea.”

Considering the importance of this opinion, the public defender may choose to petition for en banc review. The three judges on this panel were all Democratic appointees, which may mean they were more receptive to the evolving law concept. Whereas if the entire bench (15 judges) were to hear the case, it could reach a different conclusion. The defendants also have the option of appealing to the U.S. Supreme Court. Therefore, there may yet be more to this story.